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Better answers through better questions

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I was listening to Daniel Solove’s presentation at the Reboot Ottawa conference earlier today. His talk was modeled on the main points of his latest book, Nothing To Hide, and he addressed four “fallacies” that skew the debate between privacy and national security in favour of the latter.

The first fallacy is the “nothing to hide” argument. We have all heard about how if we had nothing to hide, we would have nothing to worry about. Solove counters that the “nothing to hide” argument belies a misunderstanding of what privacy is: it doesn’t exist to hide bad things; rather, it is many different, related things that are linked to dignity and integrity.

The second is the deference argument: we have to defer to the authorities because they know best. Solove mentioned that even some eminent jurists in the US are rallying behind the argument that the courts don’t know enough to pass judgement on law enforcement activities. Solove suggests we hold law enforcement and national security authorities accountable for the effectiveness of the measures they propose—they should prove the measures are effective.

The third argument countered by Daniel Solove this morning was the “all or nothing fallacy.” Solove pointed out that you don’t get more security by giving up privacy, and that you don’t get more privacy for giving up security. Rather, privacy can be—and must be—integrated into security measures. In developing this point, he touched on the idea that privacy should not necessarily be viewed as an individual right (to be pinned against collective interests), but rather as a social interest itself. Privacy should be protected on a societal level.

And finally, Solove addressed what he called the failure of the reasonable expectation of privacy test, which according to him asks the wrong question. The “reasonable expectation of privacy” rests on the assumption that people know how their privacy is being violated and that they have the power to do something about it, which is not necessarily the case. He suggests the courts shouldn’t be asking if a security measure violates a reasonable expectation of privacy (which opens up the door to esoteric debates about what is privacy), but rather, should this measure be allowed without judicial oversight and accountability.

It appears this idea of asking the right questions and putting the right elements on the balance was the running theme of Daniel Solove’s presentation: he suggests we shouldn’t be asking ourselves if a security measure in itself violates privacy, but rather if the security measure is acceptable with no oversight, no court order, no probable cause and no accountability. We shouldn’t be questioning whether the state has a right to intrude upon privacy for security reasons, but rather if we are getting better security as a result.

In a nutshell, Daniel Solove suggests what we should weigh on either side of the balance are not privacy and security, but rather a specific security measure by itself, and the same security measure with privacy protection.